By Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School. This post is part of an ACSblog online symposium on oral argument in HHS v. Florida.
At one point in our history, about a hundred years ago, the Supreme Court measured congressional authority and its limits based on formal categories. For example, the Court said that Congress had authority to regulate “commerce,” but not “manufacturing.” It said that Congress had authority to regulate matters with a “direct” effect on commerce, but not those that had an “indirect” effect. And it ruled that Congress could regulate matters of “national” concern, but not those of “local” concern.